Re Media Entertainment and Arts Alliance & Ors; Ex parte Her Majesty's Attorney-General for the State of Queensland

[1994] HCATrans 267

•

• "I

',,-~i'

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Brisbane	No B9 of 1994
In the matter of -

An application for writs of

prohibition and certiorari

against THE HONOURABLE

DEPUTY PRESIDENT POLITES of

the Australian Industrial Relations Commission, THE

HONOURABLE DEPUTY PRESIDENT

ACTON of the Australian

Industrial Relations

Commission and COMMISSIONER

McDONALD of the Australian

Industrial Relations

Commission and THE AUSTRALIAN

INDUSTRIAL RELATIONS

COMMISSION

First Respondents

MEDIA ENTERTAINMENT AND ARTS

ALLIANCE

Second Respondent

BIRCH CARROLL AND COYLE

LIMITED

Third Respondent

BIRCH CARROLL COYLE

(NORTHERN RIVERS) PTY LTD

Media(2)	1	11/4/94
GAUDRON J
(In Chambers)

Fourth Respondent

AUSTRALIAN WORKERS' UNION OF

EMPLOYEES, QUEENSLAND

Fifth Respondent

Ex parte -

HER MAJESTY'S ATTORNEY-
GENERAL FOR THE STATE OF

QUEENSLAND

Prosecutor/Applicant

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 APRIL 1994, AT 10.32 AM

Copyright in the High Court of Australia

MR J.S. DOUGLAS, QC:  I appear for the State of Queensland,

Your Honour, with MR R.S. JONES. (instructed by

K.M. O'Shea, Crown Solicitor, (Queensland))

MR J. LOGAN:	I appear for the fifth respondent, the Australian Workers' Union of Employees, Queensland.
(instructed by C.A. Sciacca & Associates)
MR R.S. MARSHALL:	I appear for the Media Entertainment and

Arts Alliance, the second respondent. (instructed

by K. Nomchong of the Media Entertainment and Arts

Alliance)

MR J.J.E. FERNON:  I appear for the third and fourth

respondents. (instructed by Freehill Hollingdale &

Page)

HER HONOUR:	Thank you.
MR DOUGLAS:

Your Honour, we have nothing to add to the

submissions we made before Your Honour on 30 March.

We have supplied the other parties with copies of the transcript of that hearing.

HER HONOUR:	Yes, thank you.
MR DOUGLAS:	We have also asked them to sign a consent order but, obviously, we did not succeed in that.
HER HONOUR:	Thank you.

MR LOGAN: If Your Honour pleases, the fifth respondent's

stance is not to oppose remitter.

HER HONOUR:  Yes, thank you. What is the position of the

second and third respondents? Are you in the same

situation as the Queensland parties, as it were?

Media(2) 2 11/4/94

MR FERNON:  No, Your Honour, we oppose the remitter.

HER HONOUR:  You oppose it, yes, thank you. You also,

Mr Marshall?

MR MARSHALL:	Yes, Your Honour.
HER HONOUR:	Have you decided between you who should make

the submissions or who should make the first

submission?

MR MARSHALL:  I am going to go first, Your Honour. Happily,

Your Honour, there are four short points that I

could state fairly succinctly. I will just give

the headings of the points before developing them.

The first is the issue of constitutional validity;

the second is a reconsideration of the obiter in

Reg v Moore; ex parte the New South Wales

Professional Officers Association, 154 CLR l; the third is the topic of facilitating the course of

litigation, and the fourth consideration is of

convenience.

As to the first, an issue of constitutional

validity of legislation is raised in the matter.

That is section 128(l)(c) of the Industrial
Relations Act. That matter, Your Honour, of

course, can only be conclusively determined in this

Court.

HER HONOUR:  Why do you say that? Constitutional questions

can be determined in other courts.

MR MARSHALL:  They can be determined in other courts,

Your Honour, but if determined adversely, can only

be determined conclusively in the sense of going to

this Court under - and I will come to it under my

third point - under section 432(2) of the the Full Court.

I do not take issue with what Your Honour says

that matters of constitutional validity do arise in

matters other than the High Court, for example, in

a matter that Justice Toohey had to deal with in a

land rights matter, Utemorrah - I will give

Your Honour the reference to it in due course - but
unlike this matter, it was a question of

competition as to whether - the matter was going to

be remitted, the question was where would it be

remitted, to the Supreme Court of Western Australia

or the Federal Court, and in the course of that

short decision Justice Toohey said, look, it does

not matter that issues of constitutionality will be

raised in the Supreme Court of Western Australia,

that is clear enough, but the question there was a

Media(2) 11/4/94

question of choice as to which court it would go

to.

Here it is a question to remit or not to

remit. Now, in circumstances where, in a heavily

contested matter an unsuccessful party is more
likely than not to press the constitutional issue

here, it goes to a question of convenience, which I

develop in my third point, as to having the matter

resolved here initially, unless of course my

friends - - -

HER HONOUR:  The constitutional question, if it arises, is

simply one of the incidental power in its

application to section Sl(xxxv), is it not?

MR MARSHALL:  As I understand the point in the order nisi,

it is said that section Sl(xxxv) cannot entertain

the exercise of that power.

HER HONOUR:  Yes. We will talk about the implied incidental

power.

MR MARSHALL:  The incidental power will be raised, no doubt,

from those who I appear for.

HER HONOUR:  Yes, but that is the only question, is it not,

whether the incidental aspect of Sl(xxxv) extends

to authorize this provision?

MR MARSHALL:  I would not want to hold those who appear

later in the proceeding to not arguing that Sl(xxxv)

would support it itself.

HER HONOUR:  Yes, would support it, but from your point of

view, you would - - -

MR MARSHALL:  The safer argument would be that the

incidental power supports it.

HER HONOUR:  Yes, all right. That is hardly a difficult

constitutional question, is it?

MR MARSHALL:  It is none the less a constitutional question,

Your Honour. The second point is that the hearing

of the matter is likely to lead to a

reconsideration of certain obiter in what I might

call Moore's case, firstly on the issue of

construction of the section where Your Honour will recall there was a difference of opinion about the requirement for identity of matters and parties

between the various - the two systems, that is the

New South Wales system and the federal system at

the time and Justice Murphy had strong views in

relation to that and so did - less strong views,

but tentative views on the issue were referred to

by Chief Justice Gibbs and Justices Deane and

Media(2) 4 11/4/94

Dawson, as has already been mentioned to you on 30

March and I will not dwell on that.

The other question that might need

reconsideration in relation to Moore's case is the

issue of constitutional validity. There were

tentative conclusions reached about that, about

section 66 in Moore's case, but as you will recall,

no doubt, it was not necessary for the

decision - - -

HER HONOUR:  Perhaps I am wrong, am I? You challenge the

constitutional validity?

MR MARSHALL:	No, I do not, Your Honour.
HER HONOUR:	The only people who challenge constitutional validity, should that question arise, are on the
other side of the table.

MR MARSHALL: That is so, but I am saying, simply for the

purpose of the question as to whether it should be

remitted, that that is one of the issues that might

arise in the matter, reconsideration of - - -

HER HONOUR:  Yes, it might arise, but it is by no means

certain to arise, is it?

MR MARSHALL:  No, but the construction is certain to arise,

and that will involve reconsideration of obiter in

Moore's case.

HER HONOUR:	But not of the decision.
MR MARSHALL:	No, because the decision went on the question of the way the order was framed.
HER HONOUR:	Yes.

MR MARSHALL:  Which was a very narrow point. But no doubt

before the Industrial Relations Court, or before

this Court, views will be put as to whether the

obiter of Justice Murphy is to be preferred to the

obiter of Justices Deane and Dawson. And that is

more appropriately put here, in my respectful

submission, than in the Industrial Relations Court.

HER HONOUR: 

More appropriately for whom?

MR MARSHALL: 

More appropriately for final determination of

the matter, conclusive, and the stabilization of
the law conclusively in respect of the matter for
future participants in the system and for future
cases coming before the Commission.

Your Honour, the third point is that given the matters raised in one and two, it is - and I

Media(2) 

11/4/94

apologize for the slight repetitiveness - I have repeated some of this in answering Your Honour - but it is highly likely that if remitted, the

matter will be back before this Court for consideration under section 432(2) of the Industrial Relations Act.

HER HONOUR:  I do not know that section. But that would

only put it in the same position as most litigation

that comes before this Court, in any event.

MR MARSHALL:  It is in the nature of special leave, yes,

Your Honour, it is.

HER HONOUR:  The effect of this legislation and the

possibility of rernitter is to put industrial cases

on the same basis as other cases in the judicial

system, is it not?

MR MARSHALL:  Yes, but Your Honour, there are industrial

cases and industrial cases. Now, at the high

point, you have what is corning up in June, the

revisitation of the - the point that was not

decided in re SPSF about the implied limitations as

to administrative services of the State.

HER HONOUR: That does not arise in this case.

MR MARSHALL:  No, which does not - I am saying that is the

high point. The low point, you would have a

pettifogging question of union rules, the obscure

question of union rules or interpretation of a

word in an award where no constitutional issue

arises.

HER HONOUR:	And where do you rate this?
MR MARSHALL:	I rate mine about two-thirds of the way up

because of the constitutional issue arising in

respect of - - -

HER HONOUR:	It might be more accurately rated at two-thirds of the way down, might it not.
MR MARSHALL:	I say not, Your Honour, because of the differences of view on construction in the High
Court in Moore's case and the very fact that a
constitutional issue is raised and of the fact that it is likely to come before this Court anyway, and
developing the third point, the point of going to
432(2) is to say that section 44 of the Judiciary
Act is intended to "facilitate the course of the
litigation", which is plagiarizing a statement in
Robinson v Shirley, 149 CLR 132 at 136 point 9. If
the matter is likely to come before this Court
ultimately, it would be not facilitating the course

Media(2) 6 11/4/94

of litigation to send it initially to the

Industrial Relations Court.

HER HONOUR:  But, of course, one of the considerations in

this is that at the end of the day, the case may go

nowhere. Is there not an appeal lodged in the

Commission itself, the effect of which might mean

that the case in fact - - -

MR MARSHALL:  Not in respect of section 128, Your Honour,

because that was -

HER HONOUR:  No, but if the appeal on what used to be the

4l(l)(d) proceedings - - -

MR MARSHALL: lll(l)(g), yes.

HER HONOUR:  It goes one way rather than the other, it may

be that the case goes nowhere.

MR MARSHALL:  Your Honour, the lll(l)(g) is quite separate

and distinct proceeding from the section 128.	The
section 128 has to be - - -

HER HONOUR: That is a very debatable proposition, actually,

in itself.

MR MARSHALL:  There has been no requirement for identity of

parties under lll(l)(g)(ii).

HER HONOUR: That is a very debatable proposition, that

motions under what I will call 4l(l)(d), which is

when my knowledge was current, are distinct

proceedings.

MR MARSHALL:  I am sorry, I have misstated that. It is

lll(l)(g), because of Citicorp, clearly is a
procedural matter within a proceeding. But none

the less, it is a procedural matter within a

different proceeding from the section 128, that is
all I was seeking to say.	The section 128

application, of course, has to be dealt with at

first instance by a Full Bench. So there is no
question of appeal in relation to section 128. In
respect to section lll(l)(g), subject to
section 45, there is a right of appeal against a

decision of a single member.

Now, if the section lll(l)(g), or the old

terminology 4l(l)(d) is successful, that will not

immediately have any impact on whether the State

proceeding will go ahead. As a matter of practice,

it may ultimately mean that State regulation will

prevail. But, of course, there may be even further
proceedings in the Industrial Relations Court in

relation to that because there have been orders

for writs of certiorari and prohibition in respect

Media(2) 11/4/94

of 4l(l)(d), of course the SEQEB case in relation
to that, where there was a majority three:two

decision involving the appropriate dealing of

section 4l(l)(d), and the Commercial Bulk Handling

case before that in the early 80s. So that is

something that can have its own separate course of

litigation, quite distinctly from section 128.

HER HONOUR:  It does not alter the fact that the outcome of

that legislation may affect the course of these

proceedings.

MR MARSHALL: That is possible, Your Honour, yes.

Your Honour, under the fourth point, considerations

of convenience, it is my submission there are no
considerations of convenience in favour of

remittal. There are no contested issues of fact to

be determined. The matter is in the nature of an

appeal against the Commission. It is a substantial

matter, which I will put two-thirds the way up the

scale and it does not involve interpretation of

awards or vague provisions of union rules, it is a

matter of real substance.

So, on the basis of those four points, the

issue of constitutional validity being raised, the
reconsideration of obiter in Moore's case, the

facilitation of the course of litigation and

questions of considerations of convenience, it is

my submission that the remittal should not occur.

HER HONOUR:	Yes, thank you.
MR FERNON:	If Your Honour pleases, it is submitted that

these proceedings should not be remitted to the

industrial court because they raise constitutional

issues which are proper for this Court to

determine. Hitherto, but for Mr Justice Murphy's

decision in Moore, the Court has regarded the

requirement that there be an identity of parties	between the federal Commission and the relevant	constitutional validity of the section granting the
federal Commission a power to restrain a State
industrial authority.

State industrial authority as necessary for the

Perhaps, could I hand to Your Honour a copy of

what I think are the three relevant decisions, and

could I also hand to Your Honour the decision that

my learned friend, Mr Marshall, referred to.

HER HONOUR:	Yes, thank you.
MR FERNON:	In the 1935 decision of the High Court in the

Australian Timber Workers' case, 53 CLR, at

page 675 it is said, when referring to a

predecessor to this section, that, at about

Media(2) 11/4/94

point 5 - it is referring to the argument, and it

says:

the dispute or the matter is a conception
involving not only a subject but parties. At

the root of the decision of this Court in the

Western Australian Timber Workers' Case lies

the principle that under sec 20 the State

industrial authority cannot be restrained from

performing its functions in relation to

persons who are not parties to the industrial

dispute of which the Commonwealth Court of

Conciliation and Arbitration has cognizance

and are not bound or liable to be bound by an

award made or to be made in that dispute.

HER HONOUR:  Mr Fernon, could I stop you there because it

does seem to me that this is a point that may need

to be dealt with although not necessarily in here.

I take it that the employees concerned are eligible

for membership of both of the Unions involved. I

have come to that tentative conclusion on the basis

that I read somewhere in the papers that the MEA

had been given exclusive coverage in the federal

jurisdiction.

MR FERNON: Without instructions, I think that that is

right, Your Honour.

HER HONOUR:  Yes. That may indicate that the question of

parties is not necessarily of quite the

significance that it was in Moore's case and the

Timber Workers' case.

MR FERNON:	Yes.
HER HONOUR:	It may also indicate the need for facts to be

explored.

MR FERNON:  The approach that has been taken, of course,

hitherto, is that where the parties are different,

the unions are different, then the dicta is that
the order would not be made. But, of course, the

employer is common in each instance.

HER HONOUR:  And the employees are common.

MR FERNON:  Yes. I would submit, Your Honour, that the

principle that is referred to in the Western

Australian Timber Workers' case is the principle

because of a constitutional limitation that was

then perceived. In the Western Australian Timber

Workers' case itself Mr Justice Isaacs, at page 200

and, similarly, Mr Justice Dixon, at page 205,

refer to the question of the validity and capacity

of the Parliament to enact the legislation which

was then the predecessor of the current section.

Media(2) 9 11/4/94

At page 200, Mr Justice Isaacs, in the

decision which is reported in (1929) 43 CLR, refers
at about point 3 to the fact that:

It would be clear violation of the

Constitution if the Federal Parliament

declared that a State Authority duly

constituted to deal with purely State

disputes, and in fact confining itself to

those, could be silenced - - -

HER HONOUR: Is this pre-Engineers?

MR FERNON: Yes, Your Honour. Similarly, at about point 6,

he notes that what has to occur is that the

necessary facts as to whether there is

constitutionally a matter justifying certain action
to be established.

Mr Justice Dixon, similarly, approached the construction of the section in the context of the

validity of the section and the perceived

limitations that arise under the Constitution.	He
refers to the validity of section 20 at about
point 3, and then at about point 5, he says:

It follows that sec 20 authorizes orders

restraining a State Authority when, and only

when, the Court has taken cognizance of a

dispute in relation to which the order is

required.

It is submitted, Your Honour, that it is

implicit in the approach that has been taken in the

1920s and in the 1930s and then picked up in the

Moore case that the construction of the section is

based upon these perceived limitations imposed by

the Constitution to conciliate with respect to

interstate industrial disputes.

It is submitted, Your Honour, that that

approach which is an approach based upon a

constitutional construction requires a

re-examination in this Court; that the Moore case
itself did not pass upon the issue, although the

issue itself was recognized in that case, in

particular, by Mr Justice Dawson at page 21

point 6.

HER HONOUR:  Yes, but the section is different now, is it

not?

MR FERNON: It is, Your Honour.

HER HONOUR:	And that precise question does not arise any more, does it? And does it arise under
subsection (c),in any event?

Media(2) 10 11/4/94

MR FERNON:	In the Moore decision, Justice Dawson set out the section at page 20 in the middle of the page,
and he says the then -

Section 66 deals with three

situations ..... (a) an industrial dispute, (b)

a matter which is provided for in an award or
(c) a matter which is the subject of

proceedings under Pt III of the Conciliation

and Arbitration Act -

so the form that he was there considering is

similar to the form of the current section. The

current section does not refer to, for example,

Part III of the Conciliation Act.

What he says at page 21, in referring to the

Western Australian Timber Workers' case and

Mr Justice Dixon's decision in that case, at about

point 7 and, again, picking up changes in the terms

of the legislation:

Although cognizance has disappeared as

condition of the exercise of the power by the

Commission in dealing with disputes, the

significance of the observations of Dixon J

lies in the fact that its disappearance may

have widened considerably the application of
the section, nows 66, so as to bring into

question the relationship between the section

and the constitutional power to make laws with

respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any

one State.

So, Your Honour, the third and fourth respondents

wish to submit that there is no constitutional

impediment to the views expressed by

Mr Justice Murphy in the Moore case. It is

submitted that it is appropriate that that be done

in this Court rather than - - -

HER HONOUR:	But that question does not arise, does it?
MR FERNON:	We submit it does, Your Honour, because the

approach to the construction of the section is

enmeshed, if you like, in the approach that has

been taken to the extent of the section.

In the Moore case also Justice Deane, in

passing, at the top of page 16, noted that for the purposes of that case it was not necessary - well,

he assumed the validity of the section. But he

continued:

Media(2) 11 11/4/94

Even if it be assumed that the provisions of

s 66 are completely valid and should be given full operation in accordance with their terms, it is apparent that those provisions did not

authorize -

the order that was then the subject of the case.

The point that we wish to submit to

Your Honour is that the approach to the construction of the question is enmeshed with the

constitutional issue; that full operation should be

given to the terms of the now section 128. say are perceived limitations on the operation of the section because of the constitutional

limitation.	Mr Justice Murphy did not have that
approach.	We adopt his approach in that regard.

HER HONOUR:  Yes, but that may or may not arise, may it not?

It depends how things are dealt with what

construction is taken and the constitutional

validity may not arise. It does not necessarily

arise, does it, on this case?

MR FERNON: Certainly the construction point arises,

Your Honour.

HER HONOUR:  It may. It may be decided. I mean, it may,

but it may not. It may be decided, for example,
that it is the same dispute and the same parties.

It may be decided in your favour, but it is the

same dispute and the same parties.

MR FERNON:  In the Queensland dispute, certainly the union

is different and certainly, in - - -

HER HONOUR: That is considered a possibility, that the

dispute is a three-cornered dispute which takes

into account and extends back to the question of
who shall have coverage of these employees.	As I
understand it, the definition of "industrial dispute" has, for a long time, extended to
demarcation disputes.

MR FERNON:  Yes. Certainly the approach in the Commission

was that they were - - -

HER HONOUR:	Yes, I know.
MR FERNON:	different and separate.
HER HONOUR:	I do not know that that was its approach so

much as that was the basis on which it proceeded

without articulating that there was, in fact, a

difference. Is that not right?

Media(2) 12 11/4/94

MR FERNON: Yes, Your Honour, yes. But, certainly, we

submit and would adopt what Mr Marshall says in

this regard, that it is convenient that it be dealt

with in this Court, and we adopt his "two-thirds"

analogy, that this is a matter that has been keenly

contested; it is a matter that involves a matter of

principle as opposed to application of principle;

it is a matter that involves what we submit is the

operation of the Constitution on the powers of the

Commission to restrain another industrial authority

and so, in that context, it is a matter of

importance, and it is a matter which has not been

considered by this Court since the 1930s.

HER HONOUR:  I do not follow that, I am sorry. What

precisely has not been considered?

MR FERNON:  The question of the requirement that there be

identical parties in the federal jurisdiction and

the State industrial authority that is the subject

of the relevant order. If the Court pleases.

HER HONOUR:	Yes, Mr Douglas.
MR DOUGLAS:	I do not want to make any submissions,

Your Honour. I just want to draw Your Honour's

attention to two sections of the new Act: one is

section 415(2) which, in effect, requires this

matter, on remittal, to go to a Full Bench of the

new court. So, it is only one step back here, I

suppose, rather than two steps. The other is that

to go from the new court back to this Court - I think my learned friend, Mr Marshall, mentioned

special leave; it is by leave under section 432(2).

It says:

Subject to subsection (3), an appeal lies to
the High Court, with the leave of the High

Court, from a judgment of a Full Court of the

Court in a matter arising under this Act.

HER HONOUR:	Thank you. Yes, Mr Logan.
MR LOGAN:	Your Honour, the only submission we make on

behalf of the fifth respondent is that the remitter
power that this Court possesses in relation to this

type of prerogative relief really reflects a

statement of policy by the Parliament to bridge a

gap that hitherto existed in the remitter powers

and that the reform Act, aside from doing that,

created a court which can do everything which those

who oppose remitter would seek to do in terms of

giving guidance to the Australian Industrial

Relations Commission and it is the proper primary

forum in which to give that guidance rather than

this Court. Nothing further.

Media(2) 13 11/4/94

HER HONOUR:  Yes, thank you.

The immediate question which arises in this

case is whether this matter should be dealt with in remitted to the Industrial Relations Court which
this Court as was required prior to the recent

was established by that legislation.

The case concerns s.128(l)(c) of the

Industrial Relations Act 1988, pursuant to which a

Full Bench of the Australian Industrial Relations

Commission may, in certain circumstances, make an

order restraining a State industrial authority from

dealing with an industrial dispute or matter.

The question that arises is primarily one of construction. Although different views were taken

or were expressed on that issue when the

predecessor of section 128 was considered by this

Court in Reg v Moore; Ex parte N.S.W. Public

Service Professional Officers' Association, (1984)

154 CLR 1, the question of construction is pre-

eminently one that is suitable for the

consideration of the Industrial Relations Court.

It is said that there is a constitutional

issue raised by the application but it is an issue

which arises only in the context of the

construction of s.128 and may only arise if one

construction rather than another is favoured. The

precise constitutional question is really no more

than a question of the outer limits of section

Sl(xxxv) of the Constitution or, perhaps, of the

application of implied incidental powers in that

context. That, too, is a question which, in my

view, can properly be determined by the Industrial

Relations Court subject to the appellate safeguards that are provided in the Industrial Relations

Reform Act 1993. There will then be an order remitting the

matter to the Industraial Relations Court on the

usual terms as to the steps taken.

What should be done about costs? There was no

provision for parties to get costs in these cases before. I presume that is still the same, is it?

MR DOUGLAS: That is still the same. It is section 347, I

think, Your Honour. We thought about it but we

thought better about it.

HER HONOUR:  Yes. I was not sure of that. Well, there is

no need for any other order other than the order of

remitter, is there?

Media(2) 14 11/4/94

MR MARSHALL:  No, Your Honour, because under section 347(1),

in any event, it is only if the moving party's
application is vexatious and unreasonable. Only
the costs could be awarded against Mr Douglas'

client if his application is vexatious.

HER HONOUR:  No, I thought the Act might have changed things

with the new court. I was not sure.

MR DOUGLAS:  It has been suggested to me that I should ask

Your Honour to certify for counsel.

HER HONOUR:  But I do not think that is necessary either if

the costs provision is as it was before.

MR DOUGLAS:	Yes.
HER HONOUR:	Very well, the Court will now adjourn.

AT 11.08 AM THE MATTER WAS ADJOURNED SINE DIE

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